Trade Union Recognition
Employers sometimes need to work with trade unions to negotiate with employees in areas like working conditions, pay and holiday. However, for the union to begin negotiations, they must be recognised by the employer.
When the union requests recognition, it must do so in writing to the employer, including:
the name of the union;
which employees will be represented by the union when it’s recognised (known as the bargaining unit);
a statement that the union is making the request under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The employer has ten working days to make a response. They have three options:
agree to recognise the union voluntarily;
reject the request;
refuse the initial request but agree to negotiate.
If voluntary recognition is agreed, nothing more need be done – the union is recognised and negotiations can begin.
If the employer takes the third option, they have twenty working days to come to an agreement with the union regarding which employers are included in the bargaining unit and whether the union should be recognised.
If the employer wants to bring in ACAS to help with the negotiations, they have ten days to make that request.
If the employer refuses voluntary recognition, the union can make an application for statutory recognition. There are some basic requirements that must be fulfilled:
a formal application for recognition;
at least 21 workers must be employed by the company;
at least 10% union membership and the union must be likely to get majority support in a ballot;
if the employer has proposed the involvement of ACAS, union consent must have been obtained within ten working days.
The application for recognition is made to the Central Arbitration Committee (CAC) and will be accepted, provided it meets the following requirements:
The union has sent the employer a copy of the application and any documents needed to support it.
At least 10% of the proposed bargaining unit are members of the union.
The union can produce proof that the majority of employees are in favour of recognition.
There are also prohibitions on application for recognition. The union will not be able to apply if:
they have made an application for recognition in the last 3 years;
they aren’t a certified independent union;
another union has been recognised and allowed to represent employees in the bargaining unit;
another union that represents 10% of the employees in the proposed bargaining unit has already made an application for recognition.
Working with a ‘suitable independent person’ (SIP)
When the bargaining unit has been agreed, the union may ask the CAC to appoint a SIP to communicate with employees in the bargaining unit. If this happens, the employer must give the SIP the names and addresses of:
employees in the proposed bargaining unit;
any employees who join or leave the bargaining unit.
If the employer does not provide this information, the CAC will issue a ‘remedial order’. If the employer does not comply with the order, the CAC could declare that the union must be recognised.
A challenge is usually made by the employer if they don’t believe that the union’s recognition application meets the requirements.
The employer will be sent a form by the CAC which needs to be submitted within five working days. The CAC will reply within ten working days. There are three possible outcomes:
the CAC may ask for more information so they can make a decision;
they may reject the union’s application if they agree that the union hasn’t met the requirements;
they may accept the union’s application.
Information on the bargaining unit
If the CAC accepts the union’s application for statutory recognition and the employer has not agreed on the bargaining unit with them, the employer must send the CAC and the union:
a list of the categories of employees who will be in the proposed bargaining unit, for example, technical and skilled but not managers;
a list of the places where they work;
the number of employees in each category at each workplace.
The employer has five working days to send this from the date the application is accepted.
The CAC will make the decision, with reference to the views of the employer and union, the degree to which the unit is compatible with the way that management is carried out and any bargaining arrangements that already exist within the organisation.
The CAC will then decide whether there needs to be a ballot of employees.
The employees will be balloted about whether they want the union to be recognised if the majority of employees in the bargaining unit are not members of the union.
The CAC may hold a ballot even if the majority of the employees are union members but they believe any of the following:
it will help maintain good relations between employer and employees;
there is evidence that a significant number of union members in the bargaining unit do not want the union to represent them;
there are concerns about why some members joined the union - for example, they were pressured.
The CAC will ask for the views of the employer and union on these matters.
Before the ballot
The employer will receive a letter advising whether there will be a ballot. A ballot can be held at the workplace, by post or both. The views of both the employer and union will be sought before a decision is made on what kind of ballot to hold.
The union has 10 days to withdraw its application. If it does not, the CAC will appoint a qualified independent person (QIP) to run the ballot.
The ballot will usually be held within 20 working days of the QIP being appointed.
The employer’s responsibilities
The employer must:
make sure the union can talk to employees in the bargaining unit - for example, allow them to hold meetings without an employer representative present;
give the CAC a list of names and addresses of employees in the bargaining unit - and update it when people join or leave;
not ask employees to miss meetings, unless absolutely necessary;
not threaten or take any action against a worker because they attended a meeting.
If the union feels that the employer has not co-operated, they can make a complaint to the CAC.
The cost of the ballot is split equally between the employer and the union.
After the ballot
The employer will usually find out the result of the vote 48 hours after the ballot closes.
The CAC will declare the union is recognised if both:
the majority of employees in the ballot vote to recognise the union
at least 40% of the employees in the bargaining unit vote to recognise the union.
If the union is declared recognised, the employer must work with the union and establish methods of collective bargaining on:
If the union is not declared recognised, then they will not be able to apply for statutory recognition for 3 years. However, the employer can still recognise them voluntarily.
If the union withdraws its application, then they and the employer no longer need to continue negotiations
This must be done before the CAC either:
declares them recognised or not recognised
tells the employer that they’re holding a ballot of employees
If the union withdraws its application because the employer has agreed to recognise them, then a “joint notice to cease consideration” must be sent to the CAC.
This means the CAC will no longer be involved.
The joint notice should take the form of a letter signed by both the employer and the union representative.
This must be done before the CAC declares the union is recognised or up to the last day of the ballot notification period (10 working days from when the CAC told the employer about the ballot).
Complaints about and from the union
The employer can complain to the CAC if the union tries to influence the outcome of a ballot using ‘unfair practices’; for example, by trying to pressurise employees.
The complaint should be made in writing to the CAC and can be done at any time till the day after the ballot closes.
The CAC may:
restart the ballot process
give the union a final warning, sometimes called a ‘remedial order’
If the union does not comply with the remedial order, the CAC can cancel the ballot and declare the union is not recognised.
If the union complains
The union can complain if the employer:
do not co-operate with preparations for the ballot
use unfair practices to change the outcome of the ballot
The CAC may send the employer a final warning if the union’s complaint is successful. This is sometimes called a ‘remedial order’.
The CAC can also:
restart the ballot process
cancel the ballot and declare the union is recognised
Points to bear in mind
Employees are protected from any detriment (including dismissal) by their employer because of involvement in trade union activities. This includes the proposal of the recognition of a trade union in the workplace. Employers should note that whilst a 2-year qualifying period is usually required for a dismissal to count as unfair, this is not the case if the dismissal is connected with union activity.
Employers need to remember that even if a union is not recognised, an employee can still be represented by a trade union official at a disciplinary or grievance hearing.